Brussels II (2201/2003) is reviewed periodically by the EU as to its operation and any possible reforms. It has already been significantly reformed once with beneficial changes in respect of children matters. This present review is well overdue and very important. The EU seeks the views, opinions and practical experiences of family lawyers about the Brussels II law and how it operates in practice.
The consultation is until 18 July 2014. The UK Government will be responding but it urges lawyers and law firms to respond directly to the EU for our opinions to be heard and hopefully result in beneficial reform.
The UK Government would also welcome hearing from us practitioners to help them in their own response and would like our comments no later than 6 June 2014 and sent to email@example.com
Often UK family lawyers complain that the EU ignores what we say and do not listen to our concerns about the impact of EU legislation in practice. We feel the EU is far too wedded to civil law concepts. When we have the opportunity specifically provided by the EU, we should fully take it.
We should respond to the EU directly so that the EU is left in no doubt about how widespread across England and Wales do international family law matters affect practising lawyers. Perhaps more than most other EU countries where international families are primarily based in the very large Metropolitan Capitals and cities, international family law work is spread across England and Wales because of our demographics. So any law firm working with international families having had experience of the operation of Brussels II, perhaps particularly the first to issue principle on divorce, should respond to the EU.
The Ministry of Justice also needs to hear from practitioners how laws operate in practice. So we need to help them respond on behalf of the UK Government.
It is likely one primary area will be the so called first to issue principle, lis pendens, in Brussels II whereby, if two EU countries could entertain divorce proceedings, all that matters to secure jurisdiction is who issues first. This is so random and arbitrary. It gives the direct encouragement to the party taking these steps to break up the marriage. It is unwise to discuss prospects of saving a marriage and reconciling if it will cause the other spouse to issue first. It is an advantage for the spouse more familiar with dealing with lawyers. It is a huge advantage to the wealthier spouse able to afford lawyers to consider forum choices. It is a direct disincentive to any mediation or other attempted settlements before proceedings. Any agreements about forum are irrelevant in this rush to issue. There are so many detriments and adverse elements. It flies in the face of good practice of family law and the out-of-court resolution attempts found in many countries.
The EU itself, now reluctantly and belatedly, recognises the problems with the first to issue principle but they need help to know how it actually operates in practice. They still tend to underplay the problem. Lawyers need to explain to them actual cases where it has had an adverse impact.
The EU needs as well an alternative for any reform. The most obvious is a hierarchy of jurisdiction so that it is clear which country has the closest connection with a couple. This is not discretionary forum by the backdoor. It is a certain and fixed set of jurisdictional criteria on a hierarchy. There is much support for this reform and it is found in other EU legislation.
There will be other areas where English lawyers will want reforms to be made including in respect of international children law
It must also be said that there are many very good elements about Brussels II including the essential element of common divorce jurisdiction across the whole of the EU and the automatic recognition and enforcement of family court orders. It is important to praise as well as give constructive criticism.
Details of the consultation can be found at the following: http://ec.europa.eu/eusurvey/runner/BXLIIA
The EU report in respect of the consultation is at: http://ec.europa.eu/eusurvey/runner/BXLIIA
In the next couple of weeks there will be voting for the European elections. For us as family lawyers across Europe, this is our opportunity to make a distinctive contribution to the future of EU family law.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.
David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.